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2015 (11) TMI 213 - CESTAT MUMBAI

2015 (11) TMI 213 - CESTAT MUMBAI - TMI - Denial of CENVAT Credit - Clandestine removal - Shortage of goods - Bogus invoices - Non receipt of actual goods - Held that:- there is no dispute that the entire shortage found in the physical stock taken by the officers is less than 5%. The director of the assessee/company also stated that the difference in stock is only due to the accounting method and not due to the clandestine removal. - shortage in the range of +/- 5 % should be ignored and it is n .....

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it note is also not maintainable as there is no suppression of facts on the part of the assessee in respect of non payment of duty on debit note, therefore the department s appeal which is limited to penalties on shortage and debit note does not survive and the same is dismissed.

Cenvat Credit - Non receipt of Inputs / raw material - Since the Cenvat Credit was fraudulently availed without receipt of the input the penalties is unavoidably imposable, hence the same is also maintained. .....

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l) For the Petitioner : Shri. Rajesh Ostwal, Advocate For the Respondent : Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) ORDER Per : Ramesh Nair These are four appeals filed by the assessee and one appeal filed by the Revenue against a common Order-in-Appeal No. SVS/299 TO 305/NGP-I&II/2007 dated 12/9/2007 passed by the Commissioner (Appeals) Central Excise & Customs, Nagpur, wherein Ld. Commissioner(Appeals) passed following orders: The Order-in-Original is modified as under 1. Appeal .....

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12/-, 3,338/- is set aside. 6. Remaining portion of the Order-in-Original stands confirmed. Appeals are disposed in above terms. 2. The facts of the case are that the M/s. Sunvijay Group company namely M/s. Sanvijay Rolling & Engg. Ltd., M/s. Sanvijay Steels Industries Pvt. Ltd. and M/s. Sanvijay Alloys Pvt. Ltd. were engaged in the manufacture of excisable goods i.e iron and steel rolls falling under Chapter 72 of the scheduled to the Central Excise Tariff Act, 1985. The said units of M/s. .....

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stock of finished goods as well as raw material were conducted in presence of independent Panchas and authorized person of M/s. Sanvijay group Industries on 20/5/2003 and 21/5/2003 on each unit and on verification, shortage of finished goods as well as raw material were noticed. Thus in all, there was a shortage of 220.665 MTs of finished goods valued at ₹ 35,01,828/- involving Central Excise duty of ₹ 5,60,292/-, 43.044 MTs of raw materials valued at ₹ 5,10,330/- involving Ce .....

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discrepancies as pointed out by the Department and in confession, the amounts of ₹ 6,45,401/- involved were paid by them. Regarding this shortage, Shri. Sanjay Agrawal, Director & Authorised Signatory of the M/s. Sanvijay Group in his statement recorded under Section 14 of Central Excise Act, 1944 stated that this shortage were due to method of accounting of finished goods. The inputs are received and recorded on actual weight basis as well as the finished goods are dispatched also on .....

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M/s. sanvijay Steels Industries Pvt. Ltd. and M/s. Sanvijay Alloys Pvt. Ltd. have taken Cenvat credit of ₹ 21,14,189/-, ₹ 7,44,260/- and ₹ 7,15,827/- respectively without receipt of the input in the respective factories. The credit was availed by the unit whose name is mentioned in the invoices as consignee whereas on investigation it was revealed that the input were received in the some different unit of the group, therefore they have wrongly availed Cenvat Credit. In the adju .....

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rtages of input and finished goods. Demand of Cenvat Credit in respect of credit taken on debit notes was also confirmed which was admittedly paid by the assessee and they have not contested the same. Aggrieved by the said impugned order the following appeals were filed. Sr. No. Appeal No. Name of the appellant Duty amounts. Penalty amount Rs. Cenvat Credit Inventory shortage Debit Note Total 1 E/1552/07 Deppt. Appeal - 42,45,724 - 42,45,724 2. E/1560/07 M/s. Sanvijay Rolling & Engg. Ltd., 2 .....

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ing the penalties dropped by the Ld. Commissioner (Appeals) commensurate to the duty demand on shortages and on debit notes. 3. Shri. Rajesh Ostawal, Ld. Counsel for the assessee submits that as regard shortage of various inputs and finished goods the quantum is negligible. It is his submission that shortage is not due to the clandestine removal of the goods, but it is only due to the accounting method and method adopted for taking the stock by the officers. He submits that stock taking was cond .....

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he difference is less than 5%, therefore the judgment of this Tribunal in their own case is squarely applicable, particularly in the fact that it is not the case of the department that the assessee have cleared the goods clandestinely. As regard the demand of Cenvat Credit confirmed on the ground of non receipt of inputs in the respective units, it is his submission that goods were admittedly received in some different unit but subsequently it was transported and shifted to the units in whose na .....

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ccordance with the said received quantity. On the query from the bench regarding the evidence of transportation of the goods from the unit where the goods were said to have been wrongly delivered to the actual unit, he could not produce a single evidence. As regard the departmental appeal on penalties on the shortage, debit note, he submits that since the clandestine removal has not been established and demand is within the normal period, penalties were rightly dropped by the Ld. Commissioner (A .....

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spect of finished goods and input during stock taking and the same was admitted by the director of the assesee/company therefore the same is maintainable. As regard wrong availment of Cenvat credit without receipt of inputs in respective unit, he further submits that appellant have categorically admitted that inputs were first received in different factory and as regard shifting of goods to the correct and respective unit the assessee could not provide any evidence. It is his submission that fro .....

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n respect of Cenvat Credit on the non- receipt of input is correctly confirmed. As regard Revenues appeal which confined to the penalties commensurate to the duty confirmed in respect of debit note, he submits that since the demand is not under dispute and there is suppression on the part of the appellant the equal amount of penalty under Section 11AC was correctly imposed by the original authority and Ld. Commissioner(Appeals) should not have dropped the said penalty therefore the same require .....

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Del)] 5. I have carefully considered the submissions made by both sides and perused the record. 6. I find that there is no dispute that the entire shortage found in the physical stock taken by the officers is less than 5%. The director of the assessee/company also stated that the difference in stock is only due to the accounting method and not due to the clandestine removal. I have gone through the judgment of this Tribunal in the assessees own case passed vide order dated 7/7/2008 wherein the .....

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manded can be split into three parts. (i) Demand of duty of ₹ 49491/- is on account of difference in the physical stock entered in RG-1 register on sectional weight basis. Whereas in some cases, where their customers insists on actual weight, they cleared the goods on actual weight. In any case, the shortage being within the range of +/- 5% , should be ignored. We agree with the above contention of the Ld. Advocate, except for small % of shortage in the final product, which in any case sta .....

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is not justified to confirmed demand on this count. I find that aforesaid judgment is squarely applicable in the present case. Accordingly, following the ratio of the above judgment, I drop the demand in respect of shortage found in the physical stock and consequently penalties commensurate to the duty of such shortage also not sustainable. As regard the duty on debit note, the assesse admittedly paid the duty and not contested. In my considered view, the penalties related to duty on debit note .....

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jay Alloys Pvt. Ltd., I find that there is no dispute and it has been admitted by the assessee themselves that inputs were initially received and delivered on different unit but credit was availed by the unit in whose name, invoices were issued. However appellant could not produce any single evidence regarding re-transportation of inputs from wrong factory to the correct factory therefore it is very clear that assessee have availed Cenvat credit but input was delivered at different factory and i .....

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